S and A (No.2)
[2002] FMCAfam 334
•11 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & A (No. 2) | [2002] FMCAfam 334 |
| FAMILY LAW – Costs – residence – contact. Family Law Act, ss.117(1), 117(2A), 117AA, 117C, 118 S&A [2002] FMCA fam 134 |
| Applicant: | S M S |
| Respondent: | R L A |
| File No: | ADM 4227 of 2001 |
| Delivered on: | 11 October 2002 |
| Delivered at: | Darwin |
| Hearing Date: | Written Submissions |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ann R Josephson |
| Solicitors for the Applicant: | D’Angelo Kavanagh |
| Counsel for the Respondent: | Martin Robinson |
| Solicitors for the Respondent: | Martin Robinson |
ORDERS
The respondent husband pay one third of the applicant wife’s costs pursuant to Part 21.10 and schedule 1 of the Federal Magistrates Court Rules in respect of preparation for trial and the trial of the matter on
7 May 2002.
IT IS CERTIFIED
That pursuant to Rule 21.15 of the Federal Magistrates Court Rule this matter reasonably required the attendance of counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM4227 of 2002
| S M S |
Applicant
And
| R L A |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant wife seeks an order for costs in her favour as a consequence of orders I made in the matter of S&A [2002] FMCAfam 134 on 15 May, 2002. These proceedings related to what contact the wife should have to the parties’ two children aged 11 and 6, and in particular what contact should take place at Christmas, whether it was appropriate that conditions be imposed on that contact and in what manner the children should be exchanged for contact. The children have lived with the respondent husband for many years. The parenting relationship between the parties is fraught with mistrust and antagonism.
I called for written submissions from each of the parties in respect of the issue of costs. The wife filed her submissions on 6 June, 2002. The husband filed his submissions on 6 September, 2002.
The questions I have to resolve are first, whether any costs order should be made and, secondly, if the answer to the first question is yes, what form the costs order should take.
The wife seeks payment of her costs in the sum of $7,613.36. This sum relates to the preparation of the trial which took place before me on 7 May, 2002, together with counsel’s fees and the hearing fee. The husband seeks that the application for costs be dismissed.
Section 117(1) of the Family Law Act provides that subject to subsection (2) and sections 117AA and 118, each party to proceedings under the Family Law Act shall bear his or her own costs. Section 117(2) provides that, if the Court is of the opinion that there are circumstances that justify the making of a costs order, such an order may be made subject to subsection (2A), as the Court considers just. Sections 117AA and 118 are not presently relevant.
Section 117(2A) sets out the matters that the Court is required to have regard to in determining whether it is appropriate to make a costs order. The Court is required to have regard to:
a)the financial circumstances of each of the parties to the proceedings;
b)whether any party to the proceedings is in receipt of assistance by way of legal aid, and if so, the terms of the grant of that assistance to that party;
c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of fact, production of documents and similar matter;
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
g)such other matters as the court considers relevant.
In this matter there was no offer made in accordance with the provisions contained in section 117C of the Act. I now turn to consider each of the matters as set out in section 117(2A).
Financial circumstances of each of the parties
The wife has remarried. Her current husband is an electrician. She herself is unable to work due to a medical incapacity. As a result she receives a disability pension. She owns two pieces of real property worth approximately $270,000.00 which are subject to a mortgage of $35,000.00. She has savings of $48,000.00. She has a car of modest value. In my view, although she could not be described as wealthy, she is not destitute and has a comfortable level of assets.
The husband owns two real properties in which he has a total equity of approximately $275,000.00. He has a car worth $15,000.00, but no savings to speak of. He is in receipt of work cover payments of $914.00 net per fortnight. Although he has a comfortable equity in two properties, the husband does not have a lavish income. He estimates his own legal costs at $4,500.00.
In my view, neither party has a clear financial superiority over the other. In broad terms their financial positions are roughly similar.
Legal aid
Neither party was in receipt of legal aid for the hearing before me. Accordingly, this is not a relevant consideration.
Conduct of the proceedings
As matters finally transpired, the issues that had to be determined by the Court at the hearing of the matter were in comparatively small compass. Those matters related to whether the wife should have contact to the children in an extended period at Christmas time, or whether her contact should be interspersed with periods during which the children returned to the care of the husband. It was the husband’s position that this latter arrangement was the children’s preference. Secondly, there was a dispute between the parties as to whether or not the children should be exchanged for contact in the confines of a police station, as the wife wished, or by means of the children walking down the driveway at the husband’s home to the wife’s waiting motor vehicle, as the husband wished. Thirdly, the husband sought to impose a number of conditions on the wife’s contact.
As is clear, the areas of dispute between the parties are indicative of a dysfunctional relationship between the parties and a high level of mistrust. As a result, there have been several previous proceedings between the parties in the Family Court in regard to parenting issues in respect of their two children. There were earlier proceedings of an interim nature in this Court prior to Christmas of 2001, in respect of the extent of the wife’s contact at Christmas and where the children were to be exchanged on Christmas Day.
The husband is critical of the wife for the number of affidavits she has sworn in these proceedings. She has filed seven affidavits in the proceedings. However, the proceedings were transferred to this Court by Judicial Registrar Forbes on the 24th September, 2001. Since that time she has in fact filed five affidavits, several of which relate to the issue of Christmas contact, which required an interim hearing. In my view, the behaviour of both parties is indicative of an inability to compromise or see the other’s point of view. In these circumstances, I do not believe that the wife can be criticised for the number of affidavits she has filed. In my view, neither the husband nor the wife can be described as being wholly reasonable in the proceedings and the other wholly unreasonable in them. However, it is my view that the wife’s position in respect of the type of contact she sought from the husband was relatively clear throughout the proceedings. As I indicated in my reasons for judgment, it was my judgment of the husband that he was “domineering, self-righteous and dogmatic”.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders
In my view, this is not a relevant consideration in the present case. Due to the ongoing level of acrimony between the parties and their inability to behave civilly towards one another it was necessary for the previous orders to be adjusted.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
It is the wife’s position that the husband has been wholly unsuccessful in the proceedings. She reaches this conclusion because the orders of the Court were that handover should be inside the Sturt police station; she was granted contact for one half of the Christmas school holiday period in one block, broken only by Christmas Day as she sought and finally, each of the conditions on her contact as sought by the husband were dismissed.
As I have indicated, each of the parties had a differing view as to what was the appropriate arrangement for contact handover. In my reasons for judgment I indicated that there were compelling reasons put forward by both parties as to why their position should be preferred. However, at the end of the day, I preferred the position put forward by the wife because of the previous high level of tension between the parties in the past.
In respect of the Christmas contact, I formed the view that the husband wished to exert the maximum amount of control over the contact and for that reason sought for the contact to be broken up into discrete periods. This was also the reason I found that he sought to impose a number of conditions on the wife’s contact to the children. In the circumstances of the case, it was my view that it was not in the best interest of the children for the wife’s contact to the children to be curtailed in this way. Accordingly, the husband was unsuccessful in each of the positions that he took in regards to the matters that had to be adjudicated upon by me.
In this case, I formed the view that the husband was unreasonably trying to make the wife’s contact with the children as difficult as possible by imposing conditions on it that were not warranted by the evidence that was led before me. That is not to say that the position that he took was unarguable on the evidence. In particular, especially in regards to contact handover, the position he adopted had much to recommend it. However, I preferred to take the wife’s position in the somewhat extreme circumstances of this case. In my view the issue of contact was clearly one that had to be adjudicated between the parties.
I am not so convinced in respect of the two other issues, namely, the extent of Christmas school holidays and the various conditions which the husband sought to impose on the wife’s contact.
In Family Law proceedings it is frequently said that the claims and counter claims made by the parties are not so much the assertions of matters of right, but are different contentions as to which way a difficult situation should be resolved. This is particularly so in matters relating to children, where parties very frequently, as a result of their different personalities and their differing perspective as to what orders are likely to be in the best interests of the child or children concerned, are very often greatly at odds with one another. In such circumstances, no blame attaches to the parties for adopting such divergent positions and as a result, it falls to the Court to choose between the competing proposals. As a result, one party must inevitably succeed and the other not. However, there are from time to time cases where one party or another adopt positions that are not related to the best interests of the child or children concerned but rather relate to other extraneous issues. I have formed the view that the husband took such a position in respect of the conditions he sought to impose on the wife’s contact. He was wholly unsuccessful.
Conclusions
Given the competing orders of each of the parties sought at trial, and the evidence that was led by each of them in support of those orders, I am not of the view that it can be said that the husband has been totally unreasonable in his conduct in respect of the proceedings. Although he has been unsuccessful in respect of the orders that he sought, in my view, the issues in respect of the contact handover were finely balanced. It was not unreasonable for the husband to wish an adjudication in respect of this matter.
In my view there was less merit in the other positions he took, particularly in respect of the conditions he sought on the wife’s contact. However, given the ages of the two children concerned, it was not totally without merit for him to seek to break up the contact at Christmas as he proposed. However, it remains my view that largely speaking, the attitudes he took in respect of the Christmas contact issue and the conditions he sought to be imposed on the wife’s contact were ones marked by intransigence and unreasonableness. He was totally unsuccessful in the positions he took in regards to these matters. In my view, he took these positions to frustrate the wife. These were simple issues that should have been resolved without a contested hearing. In those circumstances, I believe that the justice of the case warrants that the husband make some contribution towards the wife’s costs. As I have indicated the issue regarding handover was one that had to be adjudicated given the acrimonious nature of the relationship between the parties. Accordingly, it is not appropriate that the husband pay all of the wife’s costs in this matter.
The financial positions of the parties are broadly similar. In my view, in those circumstances I propose to make an order that the husband pay one third of the wife’s costs.
Pursuant to Part 21.10 of the Federal Magistrates’ Court Rules;
“unless the court otherwise orders, a party entitled to costs in a proceedings (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with schedule 1;
(b) disbursements properly incurred”
The scale of costs set out in schedule 1 to the Federal Magistrates’ Court Rules is a fixed event base scale. In my view, this is the appropriate method by which the applicant’s costs should be fixed. Accordingly, I order that the respondent pay one third of the applicant’s costs pursuant to Part 21.10 and schedule 1 of the Federal Magistrates’ Court Rules in respect of preparation for trial and the trial of the matter that took place on 7 May 2002. I certify that pursuant to Part 21.15 of the Rules, that it was reasonable for the respondent to employ an advocate for the final hearing of the matter.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Brown FM
Acting Associate: C M White
Date: 11th October 2002
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